Opinion
Case No. 02-40157-01-JAR
January 9, 2004
MEMORANDUM AND ORDER SETTING ASIDE RELEASE ORDER AND DETAINING DEFENDANT
On December 30, 2002, the grand jury returned an indictment charging defendant Troy Barker, with one count of violating 21 U.S.C. § 841(a)(1), possession with intent to distribute approximately 225 kilograms of marijuana. On December 31, 2002, a detention hearing was held before the Honorable James P. O'Hara, United States Magistrate Judge for the District of Kansas. At the close of the hearing, Judge O'Hara denied the government's motion for detention, and set conditions for release requiring a $500,000 security bond and a $500,000 cash surety. Defendant did not deposit the cash until March 2003, at which time he was released.
On November 6, 2003, a superseding indictment was returned against defendant, who was arrested in California. The superseding indictment added counts of conspiracy and forfeiture of property. This matter comes before the Court for the second time on the government's Notice of Appeal/Petition for Review (Doc. 81) of the Order entered by the Honorable James W. McMahon, United States Magistrate Judge for the Central District of California, on November 13, 2003, determining that there are conditions or a combination of conditions set forth in 18 U.S.C. § 3142(c) that will reasonably assure the appearance of the defendant Troy Barker as required, and the safety of any other person and the community. Judge McMahon stayed imposition of his release order until November 20, 2003.
The government's Petition for Review first came on for hearing before this Court on November 20, 2003. Defendant Troy Barker appeared by counsel Cornell J. Price, who represented to the Court that although defendant was not present, he had waived his right to be present at the hearing, but only to the extent that the government presented no evidence in addition to that presented at the hearing before Magistrate Judge McMahon. The government represented to the Court that it intended to present additional evidence and had filed a Memorandum and Proffer in support of its Request to Detain the defendant (Doc. 84). The Court entered an Order continuing the hearing until December 9, 2003, and detained defendant pending the hearing before it in the District of Kansas (Doc. 85). The hearing was continued for a second time at defendant's request until December 22, 2003.
On December 19, 2003, defendant filed a Motion to Continue Bond Review Hearing for Waiver (Doc. 106), asking the Court to continue the hearing until the hearing on his Motion to Suppress set for January 6, 2004, at which time he would formally waive his right, at this state of the proceedings, to request release on bail. An evidentiary hearing was held January 6 and 7, 2004, and the Court denied defendant's motion to suppress.
Co-defendant Ondreya Brace's motion to suppress was also denied at that time.
The Court, having considered the applicable law and the evidence presented by proffer, the defendant having waived his right to a review hearing, is now prepared to rule on the government's petition for review.
Analysis
Pursuant to 18 U.S.C. § 3145, this Court's review of the decision to release defendant pending trial is de novo. At a detention hearing, the government bears the burden of proof. The government must prove risk of flight by a preponderance of the evidence, and prove dangerousness to any other person or the community by clear and convincing evidence.
Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987) (citation omitted).
U.S. v. Quartermaine, 913 F.2d 910, 917 (11th Cir. 1990).
U.S. v. King, 849 F.2d 485 n. 3 (11th Cir. 1988).
In determining whether there are conditions of release that will reasonably assure the appearance of the person and the safety of any other person and the community, the judicial officer must consider the factors found in 18 U.S.C. § 3142(g). Those factors are: 1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; 2) the weight of the evidence against the person; 3) the history and characteristics of the person; and 4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
A presumption applicable in cases alleging serious drug offenses has force in this case. Under § 3142(e), upon a finding of probable cause that the defendant has committed a federal drug offense carrying a maximum prison term often years or more, a rebuttable presumption arises that no conditions of release will assure defendant's appearance and the safety of the community. The defendant is facing a mandatory minimum sentence of ten years if he is convicted of the charges contained in the superseding indictment. Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding risk of flight and danger to the community always remains with the government. The defendant's burden of production is not heavy, but some evidence must be produced. Even if a defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain.
U.S. v. Stricklin, 932 F.2d 1353, 1354 (10th Cir. 1991).
Id. at 1354-55.
Id.
Id.
In this case, a superseding indictment was returned against defendant on November 6, 2003; and on November 12, 2003, agents executed the resulting arrest warrant. The government has proffered that defendant identified himself falsely at the time of arrest, and firearms were found at his home and business, Heartless Records. The weapon found at defendant's home was a fully loaded semi-automatic assault pistol, which was not registered and is illegal to own in the state of California. Agents also found two fraudulent identification cards at defendant's home, including one from the Virgin Islands. Defendant emigrated from Jamaica to the United States in 1986, and has family members residing and operating at least one business in Jamaica. Defendant emigrated with many of his family members, several of whom are co-defendants in this case. The government further proffers that it has interviewed one confidential informant who has told agents he has been threatened with harm if he tells the truth about defendant. He has identified defendant and co-defendant Clive Hamilton as the type of people who would kill him for cooperating with the police.
In contrast to this evidence, defendant offers little or nothing to demonstrate to the Court that he does not pose a risk of flight or danger to the community. At a detention hearing, the defendant has the right to counsel, the opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The defendant, who is well-represented by counsel, did not respond to the government's motions, other than to waive his right to a hearing.
The Court finds that the government has proven with clear and convincing evidence that defendant poses a danger to the community if released pending trial. The defendant has been charged with possessing with intent to distribute a substantial quantity of controlled substances, and conspiring to do the same. There were firearms found at defendant's home and business, including an illegal semi-automatic assault pistol. There is a confidential informant in this case whose safety is at risk. Under these circumstances, the Court does not believe conditions of release can be established which are sufficient to protect the community, the safety of the informant, or the safety of the community.
The Court also finds the government has proven by a preponderance of the evidence that there is a substantial risk that defendant would flee if he were released upon conditions. Defendant has ties to Jamaica and has family outside the country. Many of defendant's siblings and half-siblings are also under indictment in this case. Defendant possessed two forms of false identification, including one for the Virgin Islands. Although defendant has behaved appropriately on bond previously in this case, the Court believes a substantial risk of flight exists under the superseding indictment, where the potential penalties are so much greater.
As the government argues, the rebuttable presumption created by § 3142(e) applies in this case. The Court, having considered all the factors set forth above, concludes that the defendant has not rebutted that presumption. The Court finds that the government has carried its burden of proving that there is no condition or combination of conditions that will ensure the safety of the community or that will assure the defendant's presence at trial and other related proceedings. Consequently, the Court reverses Magistrate Judge McMahon's order of release and orders that defendant Troy Barker be detained pending trial.
IT IS THEREFORE ORDERED BY THE COURT that the Government's Petition for Review (Doc. 81) and Request to Detain Defendant (Doc. 84) are GRANTED. The magistrate judges's November 13, 2003 order setting conditions of release for Troy Barker is reversed and set aside. Defendant Troy Barker is committed to the custody of the United States Marshal pending trial of this matter.
IT IS SO ORDERED.